Some opponents of the flag protection amendment have argued that the adoption of such a proposal could result in Congress enacting a statute that sets penalties for flag desecrators that are too draconian. In reality, as suggested below, the federal and state flag protection statutes that remain on the books after the 1989 Supreme Court decision in Texas vs. Johnson and the 1990 decision in United States vs Eichman set criminal penalties for flag desecration that are not draconian. Moreover, it is unlikely that Congress would decide - should a constitutional amendment authorize Congress to enact a flag protection statute - to break with modern tradition by adopting penalties for flag desecrators that are too severe.

The federal flag protection statute sets a criminal penalty for flag desecration convictions that is not draconian. Although the Supreme Court has ruled the federal flag protection statute unconstitutional, it remains on the books and provides a strong indication of how Congress might decide to penalize flag desecrators, in the event a constitutional amendment is enacted. The federal statute provides that convicted flag desecrators "shall be fined under this title or imprisoned for not more than one year, or both." 18 U.S.C. para 700 (1996); see also federal statute reprinted in Tab B.

Like the federal statute, state flag protection statutes remaining on the books set penalties that are not severe. Forty-seven of the fifty states continue to have statutes that establish criminal sanctions for flag desecration. In the vast majority of the states, the penalty is no more severe than the federal penalty discussed above, and in 40 out of 47 states, flag desecration is only a misdemeanor offense.

Congress likely will enact penalties for flag desecration consistent with the federal and state flag protection statutes remaining on the books Upon congressional enactment and state ratification of a flag protection constitutional amendment, Congress will then be confronted with the challenge of crafting legislation to protect the flag. At that time, Congress will most certainly work to ensure that the crime of physical desecration of the American flag receives an appropriate and reasonable punishment.

The flag protection amendment authorizes only the United States Congress to enact protections for the flag, not the States. The flag protection amendment currently pending in Congress is narrowly drawn, such that any penalties resulting from the amendment would be federal penalties only. Thus, should Congress enact the flag protection amendment, the States ratify it, and Congress enact a statute, the likely result would be a single, federal penalty no more severe than that contained in 18 U.S.C. para 700 (discussed above and reprinted in Tab B).

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